During previous debates on the bill, some have spoken about the discrimination faced by members of the transgender communities. I am aware, and I think all members are aware, of the need to protect all Canadians from violence and discrimination. I am proud that Canada is recognized on the international stage as a country that is committed to the promotion of diversity and equality and that this protection is provided by our Constitution and laws to all Canadians.
However, recognizing this, we need to consider whether the amendments proposed by Bill C-389 are clear or whether they are necessary. I submit that they are not and, for the reasons that I will describe in the next few minutes, I will be opposing the bill.
Before I begin discussing the details of the bill, I will take a couple of moments to discuss my concerns with the vagueness of the bill as drafted.
As hon. members who have studied the bill will notice, the terms “gender identity” and “gender expression” are not defined in the bill.
When the member for Burnaby—Douglas appeared before the Standing Committee on Justice and Human Rights, on which I sit, he was asked if there was a generally accepted definition of these terms. With regard to the definition of “gender identity”, he said that there were a number of definitions but noted that the one he used more often than not was an individual's self-conception as male or female, both or neither as distinguished from one's birth assigned sex. He also quoted the definition of “gender identity” found in the Yogyakarta Principles, which he just referred to in his comments, which he said was a United Nations' document well-known in human rights circles. That document defines “gender identity“ as follows:
...each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
With regard to the definition of gender expression, the same hon. member and sponsor of the bill stated:
The definition I...use for gender expression is that gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing, or changing behaviour, dress, speech and/or mannerisms.
However, the definition of “gender identity” given in the Yogyakarta Principles includes specific reference to forms of gender expression. Why then is gender expression also used as a separate term in this bill? Is that term not superfluous? If not, then what does it mean?
I respectfully submit to all members of the House that, as a result, we are left with uncertainty and vagueness about what these concepts mean. As all members know, if undefined important terms such as “gender expression” and “gender identity” would create a lack of clarity and a real problem for the bill and for those who will be called upon to interpret the bill.
In this regard, it is instructive to look at imperative legislation in other democratic countries. In 2009, Scotland passed legislation allowing for an aggravated sentence where a crime is committed, in part, on the grounds of prejudice toward transgender identity. The term “transgender identity” is defined but the term “gender expression” is not used.
Our neighbours to the south in the United States at the federal level passed the Matthew Shepard and James Byrd, Jr. hate crimes prevention act and it uses the term “gender identity”, which is define, but does not use the separate term “gender expression”. In my view, this shows that the bill is deficient by failing to provide definitions of these integral and important terms.
I will now examine the bill's proposal to add the terms “gender identity“ and “gender expression“ to the hate propaganda provisions of the Criminal Code and the sentencing provisions found in paragraph 718.2(a)(i).
Subsection 718.2(a) of the code uses general wording as follows:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,--
Paragraph 718.2(a)(i) then goes on to list certain criteria deemed to be aggravating factors used to increase a penalty for a crime beyond its usual range where the crime is motivated by bias, prejudice or hate, as follows:
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,--
The words “without limiting the generality of the foregoing” and “or any other similar factor”, I submit, make it abundantly clear that factors, other than those specifically enumerated, can be considered in cases where crime is motivated by hatred, bias or prejudice. In my view, adding the terms “gender identity” and “gender expression” adds nothing to these sections and is therefore unnecessary.
I would now like to turn my focus to the amendments proposed in the bill that propose to make additions to the Canadian Human Rights Act. Some members have argued that this bill is necessary because transgender Canadians have faced discrimination in the workplace and in obtaining housing and services. However, these members downplayed the fact that under the federal Canadian Human Rights Act, transsexuals have already been protected from discrimination on the grounds of sex.
I would like to remind members of the House that both federal and provincial human rights tribunals have already protected transsexuals from discrimination in employment and in services. The Canadian Human Rights Tribunal followed the approach taken by the human rights tribunals in British Columbia, Quebec and several other provinces, and have found discrimination against transsexuals to be covered by the existing ground of sex. This interpretation has subsequently been confirmed by the courts. Again, these additions would appear to be unnecessary.
In fact, the ground of sex in anti-discrimination laws is interpreted very broadly and has evolved over the years. It is usually understood to cover discrimination complaints based not just on sex, but also on gender attributes, pregnancy, childbirth, and more recently, transsexualism.
Given this history, I would ask all hon. members to consider whether an amendment to add the terms “gender identity” to the Canada Human Rights Act is really necessary. As members can see, in the moments preceding this, I have argued that they are not, that the proposed amendments in Bill C-389, although well-intentioned, are both unclear and unnecessary, and for all of those reasons I will be opposing the bill.